The Supreme Court today decided case No. 08-103, Reed Elsevier v. Muchnick. In an 8-0 opinion by Justice Thomas, the Court held that § 411(a) of the Copyright Act, which requires registration before filing suit (for United States works) is not a “jurisdictional” limit. Thus, the district court had subject-matter jurisdiction to approve a class-action settlement that included plaintiffs who hadn’t registered their copyrights.

I approve of the result, for reasons I laid out in a blog post a year ago. The “jurisdictional” theory just doesn’t make sense in terms of the policies of copyright: it keeps some important claims (such as declaratory judgment actions by defendants) that ought to be in court out. I would have preferred that the Supreme Court address these copyright-policy issues; instead, it focused on its precedents on jurisdictional and non-jurisdictional statutory elements. That’s understandable, though; the Court wanted to give guidance to the other federal courts on a wider range of issues, not just copyright ones. And since § 411(a) was drafted reasonably, applying the general rule leads to the right result in this case.

This decision has some implications for the Google Books settlement. Most notably, the settlement class was defined to avoid this problem: it excluded the owners of unregistered United States works. Now that the Supreme Court has spoken, that move turns out to have been unnecessary: the settlement class could have included them. I doubt they’ll be added back in, though: the settlement would essentially have to be rebooted for the settlement class to be expanded that much. Moreover, it’s now clear that there are other factors constraining the size of the class, such as the notice issues and the treatment of foreign copyright owners.

C.E. Petit thinks the new decision makes the settlement “legally untenable.” I don’t think this is a one-hit kill; a settlement class is not required to be the absolute largest it could possibly be. I do, however, expect a small flurry of briefing on this issue, as the Supreme Court’s decision is clearly relevant, controlling authority.

Other commentary: Civil Procedure and Federal Courts Blog; Irv Muchnick.

Thank you very much for this.

If I understand you correctly, you don’t think the court will heed Pamela Samuelson’s recommendation in her supplemental objection (pp. 10–11):

If the Supreme Court decides that unregistered rights holders can participate in copyright class action settlements, this Court should ask the litigants to renegotiate the PASA to address the unregistered rights holders issue. Indeed, the lawyers for the Author Subclass should sua sponte make a request for reconsideration of the settlement terms if the Supreme Court reverses the Second Circuit ruling. However, if they do not do so, this Court should refuse to approve the settlement until the class is redefined, as it would be unfair to deny unregistered copyright owners an ability to decide whether they wish to participate in the PASA (or to opt out) if the Reed Elsevier case allows their inclusion.

How does this decision affect the authors of what the Settlement calls “inserts” that were registered in the US as a part of one or several books, but not separately?

Irvin Muchnick is arguing (as he did last autumn) for the fusion of the GBS and Reed Elsevier v. Muchnick.

There aren’t any direct effects for the settlement’s treatment of inserts: the class definition is what it is. But the Reed Elsevier case undermines the precedents that would cause inserts not registered as separate works to be jurisdictionally outside the class. So it has the same kind of complicating hydraulic effect there that it does for full books.